CONSUMER AFFAIRS VICTORIA
PURSUANT TO SECTION 198 OF THE
AUSTRALIAN CONSUMER LAW AND FAIR TRADING ACT 2012 (Vic)
ENFORCEABLE UNDERTAKING
The commitments in this Undertaking are offered to the Director of Consumer Affairs
Victoria by:
JAMES CURTIS ALEXANDER
of Unit 19/675 Boronia Road, Wantirna Victoria 3152
BACKGROUND
The Director
1.
The office of the Director of Consumer Affairs Victoria (“the Director”) is recognised
under section 107 of the Australian Consumer Law and Fair Trading Act 2012 (Vic)
(“the Act”). The Act re-enacts the Fair Trading Act 1999 effective from 1 July 2012.
2.
The Director is responsible for the administration of the Act, the Australian Consumer
Law (“the ACL”) which has been adopted as a law of Victoria under the Act) and
Victoria’s other consumer protection legislation.
3.
The Director may, under section 198 of the Act, accept a written Undertaking from any
person in connection with any matter in relation to a contravention of the Act or other
consumer legislation, in respect of which the Director has a power or function, as a
means of resolving a contravention of the Act or other consumer protection legislation.
James Curtis Alexander
4.
James Curtis Alexander is, as at the date of this Undertaking, the sole officer of
Gadget Price Pty Ltd [ACN 137 479 639], an Australian proprietary company limited
by
shares
registered
on
3 June 2009
which
has
its
registered
office
at
20 Tamarind Place, Stretton Queensland 4116 and its principal place of business at Unit
19, 765 Boronia Road, Wantirna Victoria 3152 (“the company”).
INQUIRIES MADE BY CONSUMER AFFAIRS VICTORIA
The Relevant Period
5.
The relevant period for the purposes of this Undertaking is on or about 30 June 2009 to
on or about 16 November 2010.
6.
During the relevant period:
(a)
the company, trading as Blueflymobile and/or Gadget Services carried on an
online business, utilising the website www.blueflymobile .com.au whereby the
company accepted payment for the supply to consumers of goods ordered online,
consisting of mobile telephones, cameras and related equipment and associated
warranty services in relation to the goods.
(b)
James Curtis Alexander:
(i)
conducted and managed the day to day activities of the company;
(ii)
was the account signatory and contact for the company’s bank accounts;
(iii) monitored and supervised the company’s performance, including its
financial performance.
7.
Pursuant to section 100 of the Fair Trading Act 1999, as it applied during the relevant
period [now section 109 of the Act] the Director’s powers included monitoring
compliance with, investigating and prosecuting breaches of; the Fair Trading Act 1999.
8.
Pursuant to the powers listed above, investigators with Consumer Affairs Victoria
commenced an investigation in late 2010 into the conduct of the company and its
officers, inclusive of the relevant period, following a number of consumer complaints
received by Consumer Affairs Victoria.
9.
As a consequence of the inquiries undertaken in the course of this investigation,
Consumer Affairs Victoria received information indicating or alleging that:
(a)
the company had, in trade or commerce, in respect of at least the 14 consumers
referred to in Schedule “A” to this Undertaking (“the consumers”):
(i)
accepted payments into its bank accounts amounting to $13,996.07 for the
supply of goods and associated warranty services;
(ii)
either failed to supply those goods at all or failed subsequently to provide
warranty services included in the transactions, in relation to goods
subsequently discovered to be defective;
(iii) failed to make any subsequent refunds to the consumers as a result of the
conduct in (ii) above;
(b)
James Curtis Alexander, as the person who:
(i)
conducted, managed and supervised the company’s activities;
(ii)
monitored and supervised the company’s performance; and
(iii) who was the account signatory and contact for the company bank accounts
into which consumers directly made payments –
was an officer who knowingly permitted the company to accept the payments referred
to in Schedule “A” for the supply of goods and associated warranty services without
the goods or services, as relevant, subsequently being supplied.
CONTRAVENTIONS OF THE FAIR TRADING ACT 1999 (VIC)
10.
The Director of Consumer Affairs Victoria considers that by engaging in the conduct
referred
to
in
paragraph 9
above,
James Curtis Alexander
has
contravened
section 19(1)(a) of the Fair Trading Act 1999,as applying during the relevant period, in
respect of the 14 consumers in Schedule “A” on the basis that he was knowingly
concerned in a party to the alleged contraventions.
ACKNOWLEDGEMENT OF ALLEGED CONTRAVENTION
11.
James Curtis Alexander acknowledges that the conduct in relation to him, as referred to
in paragraph 9 above is alleged by the Director of Consumer Affairs Victoria to have
contravened section 19(1)(a) of the Fair Trading Act 1999, as it applied during the
relevant period.
12.
James Curtis Alexander seeks to address the alleged contraventions relating to him by
offering this Enforceable Undertaking to the Director of Consumer Affairs Victoria
pursuant to section 198 of the Australian Consumer Law and Fair Trading Act 2012
(Vic).
STATEMENT THAT THE CONDUCT HAS STOPPED
13.
James Curtis Alexander hereby confirms that the conduct referred to in paragraph 9 has
stopped and that the company has ceased to engage in the business referred to in
paragraph 6 above.
UNDERTAKING
14.
James Curtis Alexander undertakes to the Director of Consumer Affairs Victoria,
pursuant to section 198 of the Australian Consumer Law and Fair Trading Act 2012
(Vic) that he will, from the commencement date of this Enforceable Undertaking, pay to
Consumer Affairs Victoria for distribution to the subject consumers, the sums specified
in the column headed ‘Sum to be paid’ in Schedule “A”, comprising a total sum of
$10,194.57, in the manner set out below.
(a)
Monthly payments are to be forwarded to Consumer Affairs Victoria at the
minimum rate of $400.00 per month commencing immediately from November
2012, such monthly payments to be received on or before the 7th day of each
month.
(b)
On the basis that all monthly payments are minimum monthly payments of
$400.00 commencing November 2012, the total sum is to be paid by 26 monthly
instalments as follows:
(i)
25 monthly payments of $400.00; and
(ii)
a final payment in December 2014 of $194.57 being the balance of the total
sum outstanding.
(c)
If James Curtis Alexander opts to pay monthly instalments in excess of
$400 per month, the time for payment is adjusted accordingly until the total sum
of $10.194.57 is paid.
COMMENCEMENT OF UNDERTAKING
15.
This Undertaking comes into effect when it is signed by James Curtis Alexander and is
accepted by the Director of Consumer Affairs Victoria.
ENFORCEMENT
16.
If Consumer Affairs Victoria considers that James Curtis Alexander has breached any
of the terms of this Enforceable Undertaking given by him, Consumer Affairs Victoria
may apply to a court under section 198(5) of the Act, for an order directing that he
comply with that term of the Undertaking or any other order that the court considers
appropriate.
ACKNOWLEDGEMENTS
17.
James Curtis Alexander acknowledges that:
(a)
the Director of Consumer Affairs Victoria will register this Undertaking in the
register of undertakings and make it available for public inspection pursuant to
section 200 of the Act;
(b)
the Director of Consumer Affairs Victoria and/or Minister for Consumer Affairs
may from time to time publicly refer to this Undertaking;
(c)
this Undertaking in no way derogates from the rights and remedies available to
the Director of Consumer Affairs Victoria arising from any conduct described in
this Undertaking or arising from conduct outside the relevant period or arising
from future conduct;
(d)
this Undertaking in no way derogates from the rights or remedies available to any
person or entity (including any other regulatory agency) arising from any conduct
described in this Undertaking or arising from conduct outside the relevant period
or arising from future conduct.
EXECUTION
Executed and signed by:
........................................................................................
JAMES CURTIS ALEXANDER
In the presence of:
Witness: .........................................................................
(PRINT NAME) __________________________________
Accepted by the Director of Consumer Affairs Victoria (or the authorised delegate of the
Director) pursuant to section 198 of the Australian Consumer Law and Fair Trading Act
2012.
...................................................................................
Mr Phillip D’Adamo
Acting Director
DATED:
2012
SCHEDULE “A”
Name of Consumer
Sum to be Paid
1
J. Miles
$330.65
2
L.Evans
$870.00
3
R. Ingielewicz
$560.60
4
P. Toloraya
Chargeback received
5
S.Lipnicki
Chargeback received
6
R. Hammond
7
W. Dell
$1104.95
8
M.Gidney
$1358.00
9
K. Hughes-Parry
$1729.94
$314.75
10 N. Clarke
$925.00
11 S. Wood
$592.00
12 H. Amrein
$993.68
13 B Burrows
$711.00
14 C. Bird
$704.00
Total:
$10,194.57